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[2013] ZAGPJHC 317
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Mkhonza v Road Accident Fund (2012/22193) [2013] ZAGPJHC 317 (10 October 2013)
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REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE
NO: 2012/22193
In
the matter between:
MKHONZA,
ALBERT
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
CHOHAN
AJ
:
INTRODUCTION
1.
On
5 July 2010 at approximately 22h10 and on the N3 between Durban and
Johannesburg the plaintiff, whilst driving a Polo Classic
with
registration number [….], was struck by an object which he
later identified as a large tyre.
[1]
2.
The
plaintiff claims that as a result of this collision, he sustained
certain injuries and in consequence has now sued the Road
Accident
Fund (“the RAF”) for damages arsing out of that
collision. The plaintiff alleges in his particulars of claim
that:
2.1.
the
object which struck his car was a tyre from a vehicle whose
particulars are unknown to him;
2.2.
the
sole cause of the collision was the negligent driving of the driver
of the unknown vehicle who
inter alia
failed to secure the load on his vehicle properly and diligently
and/or failed to maintain his vehicle in a proper and roadworthy
condition;
3.
The
RAF has denied that an accident occurred and has moreover denied that
such accident was as a result of the negligence of the
unknown
driver.
[2]
It contends in
the alternative that the plaintiff was also negligent by failing to
keep a proper and adequate look out and
by failing to avoid the
accident, when by the exercise of reasonable care and skill he could
and should have done so.
[3]
4.
At
the commencement of the trial, the parties sought a separation of
merits from quantum and I accordingly ruled that the allegations
contained in paragraphs 1 to 6 of the plaintiff’s particulars
of claim
[4]
, read in conjunction
with paragraphs 1 to 5 of the RAF’s plea, be separated and be
determined at the outset and prior to
the remaining issues.
THE
EVIDENCE
5.
The
plaintiff was the only witness who gave evidence.
6.
He
testified that he was travelling with his wife and son from Durban on
his way to Johannesburg on the N3 motorway. He claimed
that the
motorway (which was a dual carriage way separated by a barrier line)
was busy and that there were a number of trucks adjacent
to his
vehicle on the left hand side. He was travelling on the right lane
and the nearest vehicle in front of his was approximately
30m.
7.
He
noticed that in the opposite lane, there were a number of lights and
therefore assumed that there were a number of vehicles travelling
in
the opposite direction as well. He was unable of course to make
out the type of vehicle as his concentration was focussed
in front of
him.
8.
He
testified that as he was driving, an object suddenly appeared
approximately 5m in front of him. It was black in colour and it
was
huge. It was rolling towards him and came from the right hand side in
the direction of the opposite lane. Everything happened
in a split
second. He was unable to swerve to the left because of the presence
of the truck that was travelling adjacent to him
and he was unable to
swerve to the right because of oncoming traffic. He tried to brake
but was unable to avoid colliding with
the object.
9.
The
plaintiff was unable to state what occurred immediately after the
collision as he was apparently unconscious and thereafter
in a state
of shock. When he regained consciousness some few hours later,
there were a number of policemen and freeway patrollers
on the scene
who advised him that he had hit a tyre, which he then saw lying a few
metres in front of his vehicle and which
the freeway patrollers
suggested was common parlance on that motorway.
10.
The
defendant led no witnesses. Counsel for the defendant sought to
discredit the plaintiff and his version of how the accident
by
referring to a number of documents in which a recordal of how the
accident took place was set out:
10.1.
the
first was a police accident report form which was completed at
approximately 24h10 on 6 July 2010.
[5]
According to that report, the plaintiff had an accident when he
collided with a tyre that was lying on the road;
[6]
10.2.
the
second was a report prepared by Dr GH Schwartz, an orthopaedic
surgeon, in which the accident is described as having occurred
when
another vehicle “
from
the front came onto [the plaintiff’s] lane and [the
plaintiff’s] vehicle collided with another vehicle”;
[7]
10.3.
the
third was a report prepared by Thusanong Consulting, industrial
psychologists, in which it was suggested that the accident occurred
when a big tyre came off a big truck coming from the opposite
direction and colliding with the plaintiff and “
two
other cars”
.
[8]
11.
Although
reference was made to these reports, the discrepancies between what
was contained therein and what the plaintiff testified
were not
canvassed with the plaintiff. In addition, the authors of these
reports were not called to explain their recordals and
I am
accordingly left with an undesirable situation where although the
plaintiff’s version appears prima facie to be inconsistent
with
versions contained in other documents (not necessarily
contemporaneous documents) he was not cross examined on these
versions.
In any event, he struck me as a reliable and credible
witness and his explanation of being hit by a tyre is in part borne
out by
the police report. I therefore am inclined to accept his
evidence.
12.
I
should add that in an affidavit deposed to by the plaintiff on 26
January 2012, the plaintiff reaffirmed that at 22h10 and on
5 July
2010 and whilst he was travelling from Durban to Johannesburg along
the N3 motorway, a big tyre fell from an oncoming truck
and rolled
over his path of travel, causing the collision.
[9]
13.
Of
course, and as the plaintiff himself conceded, he did not see a big
tyre falling from an oncoming truck. He assumed that
that was
the case based on the big object that he had seen rolling in his
direction, what had been conveyed to him by the freeway
patrollers
and the tyre that he subsequently saw lying on the road in front of
his vehicle after the collision.
ANALYSIS
14.
Despite
the apparent discrepancies, it is quite clear that a collision in
fact occurred on 5 July 2010 at approximately 22h00 along
the N3
motorway towards Johannesburg between the plaintiff’s vehicle
and a large tyre.
15.
It
follows that there are two further enquiries:
15.1.
the
first is whether the collision was caused, as the plaintiff contends,
by a tyre that had fallen off from a truck travelling
in the opposite
direction;
15.2.
the
second (which is premised on an affirmative finding in relation to
the first inquiry) is whether the collision was caused by
the
negligence of the driver of the unknown truck that was travelling in
the opposite direction.
16.
I
deal with each of these inquiries more fully below. Both inquires
require inferences to be drawn on the available evidence. That
is
because there is no evidence by the unknown truck driver or by any
other eye witness for that matter. In drawing such inferences,
I am
to balance the probabilities and to select that inference which is
the more “
natural,
or plausible conclusion from amongst several conceivable ones even
though that conclusion be not the only one”
.
[10]
17.
There
is a fine line between an inference based on unacceptable conjecture
and an inference premised on acceptable deductive reasoning
based on
proven physical facts.
[11]
For
this reason, a greater degree of caution must, in my view be
exercised.
18.
I
note in this regard the
dicta
of Holmes JA in
Sardi
& others v Standard & General Insurance Co Ltd
[12]
:
“
In
this Court, in seeking to establish negligence of the driver of the
insured vehicle, counsel for the appellant referred to the
fact that
he swerved across the road. Wherefore counsel relied on the
maxim res ipsa loquitur (the thing speaks for itself).
He
submitted that it was for the respondent to adduce sufficient
evidence to overcome the prima facie effect of the evidence that
Coxon drove on to the incorrect side of the road. The maxim has
no bearing on the incidence of the onus of proof on the pleadings.
It is invoked where the only known facts, relating to the negligence,
consist of the occurrence itself; see Groenewald v. Conradie:
Groenewald en Andere v. Auto Protection Insurance Co. Ltd.,
1965 (1)
S.A. 184
(A.D.) at p. 187F. The occurrence may be of such a
nature as to warrant an inference of negligence. As
Innes,
C.J.,
pertinently insisted in Van Wyk v. Lewis,
1924 A.D. 438
at p. 445,
lines 8-9, “It is really a question of inference”.
It is perhaps better to leave the question in the
realm of inference
than to become enmeshed in the evolved mystique of the maxim.
The person, against whom the inference of
negligence is so sought to
be drawn, may give or adduce evidence seeking to explain that the
occurrence was unrelated to any negligence
on his part. The
Court will test the explanation by considerations such as probability
and credibility; see Rankisson &
Son v. Springfield Omnibus
Services (Pty.) Ltd.,
1964 (1) S.A. 609
(N) at p. 616D. At the
end of the case, the Court has to decide whether, on all of the
evidence and the probabilities and
the inferences, the plaintiff has
discharged the onus of proof on the pleadings on a preponderance of
probability, just as the
Court would do in any other case concerning
negligence. In this final analysis, the Court does not adopt
the piecemeal approach
of (a), first drawing the inference of
negligence from the occurrence itself, and regarding this as a prima
facie case; and then
(b), deciding whether this has been rebutted by
the defendant’s explanation. See R. v. Sacco,
1958 (2)
S.A. 349
(N) at p. 352; Grootfontein Dairy v. Nel, 1945 (2) P.H. 015
(A.D.); Arthur v. Bezuidenhout and Mieny,
1962 (2) S.A. 566
(A.D.) at
pp. 574-576.”
[13]
19.
I
now turn to address the first inquiry:
19.1.
the
plaintiff, it will be recalled, was unable to say whether the tyre
that he ultimately saw after the collision had come from
a truck
travelling in the opposite direction. He assumed that it did
and it was counsel for the plaintiff’s contention
that that was
the most probable explanation for what occurred;
19.2.
it
is unlikely that the tyre was rolled over by someone standing on the
verge of the motorway. It was a meter in height and would
have been
too heavy for someone to roll it with such speed that it would have
crossed 2 lanes and thereafter collide with the plaintiff’s
vehicle;
19.3.
similarly,
it is unlikely that the tyre was lying on the freeway waiting for the
plaintiff to collide into it. That is because there
was another care
in front of the plaintiff and there was no evidence that that vehicle
swerved to avoid the obstruction;
19.4.
I
am accordingly satisfied that on probability the most plausible
inference to be drawn from the plaintiff’s evidence is that
the
tyre that ultimately struck his vehicle came from an oncoming
vehicle. In this regard I am of the view that in all
probability,
the tyre was part of a consignment being transported
along the freeway and fell off the vehicle. It is unlikely that the
tyre came
off a moving truck as I would assume that if it did, the
truck driver would notice a missing tyre alternatively, it would have
had some negative impact on the truck itself. Here again, there was
no evidence of an accident on the opposite lane or of a truck
stopping because a tyre came loose and rolled across the freeway.
20.
That
leads me to the second inquiry. In this regard:
20.1.
it
was similarly suggested by counsel for the plaintiff that even though
there was no direct evidence of negligence, I am to infer
that there
was negligence on the part of the driver of the unknown vehicle
because, absent such negligence, a tyre would not have
fallen off and
would not have rolled onto the path of the plaintiff. Reliance
was placed, in part on the
res
ipsa loquitur
principle;
[14]
20.2.
there
is no evidence as to how the unknown vehicle was being driven.
There is equally no evidence of what steps may have been
taken by the
driver of that unknown vehicle to secure the load on his vehicle or
to maintain his vehicle in a proper and roadworthy
condition;
20.3.
there
are a number of possibilities. One such possibility (bordering
along impermissible conjecture and speculation) is that
the unknown
vehicle could have hit a pothole, which could have loosened the load
with the result that the tyre which had been secured
came loose and
fell off. Of course another possibility is that the load was not
properly secured and the tyre fell off as a result;
20.4.
a
rolling truck tyre on a freeway is by its very nature not something
that drivers ordinarily experience. The question is whether
it is one
which does not ordinarily happen without negligence for if that is
so, then the application of the res ipsa loquitur
principle is
apposite;
[15]
20.5.
absent
any other explanation(and none was suggested by the defendant) it
would seem to me that the more plausible inference to draw
from the
plaintiff’s evidence is that the tyre came loose as a result of
a failure on the part of the driver of the unknown
vehicle to have
properly secured his load. That, it would seem to me, is the
most natural and obvious conclusion to draw.
CONCLUSION
21.
In
the result, I find for the plaintiff in respect of the separated
issues.
22.
I
accordingly make the following order:
22.1.
the
RAF is liable to the plaintiff for whatever injuries and/or damages
the plaintiff may in due course prove;
22.2.
the
RAF is to pay the plaintiff’s costs of the trial on the
separated issues.
_______________________
M
A CHOHAN
ACTING
JUDGE OF THE
HIGH
COURT
HEARD:
9 OCTOBER 2013
DELIVERED:
11 OCTOBER 2013
COUNSEL
FOR PLAINTIFF:
A NELL
INSTRUCTED
BY:
RONALD BOBROFF & PARTNERS
COUNSEL
FOR DEFENDANT: K MAGANO
INSTRUCTED
BY:
KEKANA HLATSHWAYO RADEBE INC
(jmt.4.6.13)
[1]
Later
identified by the plaintiff as a large tyre, approximately 1m in
height.
[2]
Pleadings:
p 15, para 4-5
[3]
Pleadings:
p 16, para 5.2
[4]
These are the allegations relating to the occurrence of
the accident and the negligence of the driver of the unidentified
vehicle
[5]
Merits
bundle: p 7
[6]
Coincidentally,
this version of how the accident occurred was never put to the
plaintiff during cross-examination.
[7]
Exhibit
C: p 2
[8]
Exhibit
E: p 8
[9]
Merits
bundle: p 3
[10]
See
De
Maayer v Serebro; Serebro v Road Accident Fund
2005 (5) SA 588
(SCA) at 596, para [18]
[11]
See
Road
Accident Fund v Mgweba
[2005] 1 All SA 646
(SCA) at 651, para [16];
AA Onderlinge
Assuransie Bpk v De Beer
1982 (2) SA 603
(AD) at 620F-G
[12]
1977
(3) SA 776
(AD) at 780C-H
[13]
This
dicta
has not had universal approval and has to some extent been
criticized by academics such as Cooper in his authoritative book,
Delictual
Liability in Motor Law
,
1996 at page 106
[14]
The term
res
ipsa loquitur
means “
the
thing speaks for itself”
.
[15]
See
The
South African Law of Evidence
,
2
nd
Edition by D Zeffert and Paizes at p 218